Birkett v James No Longer Rules

Securum Finance Ltd v Ashton and another (TLR 5 July CA)

The principle laid down by the House of Lords in Birkett v James ([1978] AC 297) that the court should not dismiss proceedings for want of prosecution where it was still open to the claimant to bring a fresh action within the limitation period has not survived the introduction of the Civil Procedure Rules. Under CPR rule 3.4(2)(b) the court could strike out all or part of a statement of case if it appeared to be an abuse of the court’s process. In exercising that power the court must seek to give effect to the overriding objective, set out in rule 1.1, enabling the court ‘to deal with cases justly’. That included ‘allotting to it an appropriate share of the court’s resources, while taking into account the need to allot resources to other cases’. In Birkett v James the consequence to other litigants and to the courts of inordinate delay was not a consideration which was in issue. It is now a consideration of increasing significance. The fact that earlier proceedings had been struck out on the grounds of delay was a factor to which the court must have regard when considering whether to strike out fresh proceedings brought to enforce the same claim. Was it an appropriate use of the court’s resources having regard to (i) the fact that the claimant had already had a share of those resources in the first action and (ii) that his claim to a further share must be balance against the demands of other litigants? The time had come for the Court of Appeal to hold that the change of culture which had taken place over the last three years led to a position in which it was no longer open to a litigant whose action had been struck out on grounds of inordinate and inexcusable delay, to rely on the principle that a second action commenced within the limitation period would not be struck out save in exceptional cases. The position now was that the court must address the application to strike out the second action with the overriding objective of the CPR in mind, and must consider whether the claimant’s wish to have a second bite at the cherry outweighed the need to allot its own limited resources to other cases.